A Legal Blog by Aaron | Sanders, PLLC


Are You a Phony if You Parody “Three’s Company”?

Holden Caulfield Watches a 70’s Sitcom. Hilarity Doesn’t Ensue.

If television shows are as influential as most people assume they are, I’m amazed that I wound up a productive member of society. My parents let me watch things that should have scarred any seven-year-old for life: Love Boat, Fantasy Island, That’s Incredible, I, Claudius, Diff’rent Strokes and Three’s Company, among other shows full of sex, violence, bullshit, stereotypes and empty calories

You younguns might not believe this, but there was a time when (1) TV was the primary form of entertainment, (2) you only had a few channels to choose from, and (3) most of it was awful. In the same way an app that costs $1.99 today is better than an Atari 2600 cartridge that cost $19.99, much of quasi-professional YouTube is better than what we had to watch in 1977. I get as nostalgic for my childhood as the next guy, but even I can see my children have it way better.

Three’s Company was a pretty execrable show. The plot (borrowed from a British television show called Man About the House) is about a straight man (an aspiring chef) who must pretend to be gay in order to live…

The three principal characters and two supporting characters. This photograph was taken in 1977 and apparently published without a copyright notice, so there.

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Funny Just Isn’t Enough – What’s “Parody” in Copyright

People can be terribly clever sometimes.  Take the Holderness Family, for example.  Apparently, mom was too busy running triathlons to sit down and write out a family newsletter, so the family made up a rap to the music of “Miami,” by Will Smith, and made the cutest video, which has now, of course gone viral (Dad’s a news anchor, which gives him a little bit of an unfair advantage, in case you were feeling suddenly inadequate about your holiday preparation skills…):

Super cute. But not a parody.

If you’re an ancient Greek and your understanding of the word parodeia is “song sung alongside another,” then these new lyrics to Will Smith’s composition would probably qualify.  But the definition has changed over time and through the formation of the English language, which is the one we care about for purposes of American copyright law.

I am jumping to the issue of whether the Christmas Jammies song is a parody because if it isn’t, then what the Holdernesses did with Will Smith’s song isn’t fair use. (There’s no category of fair use for writing new lyrics to pre-existing music unless it’s a parody).  And if it isn’t fair use, then it’s copyright infringement.

The definition…

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Is it Fair Use? (Appellate Edition): Transformers in the Art Gallery

Parody ≠ Transformative Use

I know you’ve been playing Is it Fair Use? the fast-paced, brain-teasing game that’s sweeping the nation. That means you’ve already played the very first installment, which involved an “appropriation artist,” some photographs of Rastafarians, and a cancelled art show. If you haven’t, or you want to refresh your recollection, go play that round, then come back here. Meanwhile, here’s the main image I focused on in that case, Prince’s Graduation (right), and the Cariou photograph he borrowed:

Left: Patrick Cariou, Photograph from Yes Rasta, p. 118. Right: Richard Prince, Graduation

So it wasn’t fair use, right? And I said that the decision (read it again here) was about as well-reasoned as you’ll find? I thought the two most important facts were (1) that Cariou had an exhibition planned but it fell through when Cristiane Celle, the gallery owner, found out about Prince’s exhibition; and (2) that this, a work called Graduation, was a typical example of Prince’s “transformation” of Cariou’s work. I expressed concern, however, that the case seemed to turn on how well the artist was able to explain himself.

Is his Case More Appealing Than his “Art”?

Let’s play again, but at the…

graduation

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Rick’s Copyright Final Exam: The Final Part

Part III, No. 2: Larry Gardner & the Missing 25% Copyright Ownership Interest

This really is the last part of my annotated final exam that I gave to my Vanderbilt Law copyright class last term. I decided to split the long essays into two parts because of: length issues. Feel free to start at the beginning, or return to the first long-essay topic, or even jump somewhere in between.

Anyway, here is my homage to/satire* of the Harry Potter novels, inspired partly by Rich Burlew’s Larry Gardener and the Angry Half-Orc. Only I’d never kill Harry off like that. I’ll defend books 1-3 to the end, no matter how badly mangled the Latin is, and I’ll defend the series as a whole to a lesser extent (except book 5—never book 5).

* Very post-modern, no? It’s a parody of Harry Potter, in which the parody is, in-topic, “straight,” and there’s also (1) an in-topic “parody” (well, is it really? You decide.) and (2) an in-topic “straight” rip-off of the “straight” original, which really a parody of the real original. Between you and me, I think I’d rather watch Georgina Henderson.

Lurking behind this fact pattern is the danger of uncontrolled co-owners…

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Elvish Is King: Parody in Trademark Cases

Is it Fair Use? Looks at Trademark

We’ve already looked at the “Elf On/Elf Off” decision (CCA & B, LLC v. F + W Media Inc., N.D. Ga. Sept. 22, 2011) with respect to copyright infringement, but it also has an extensive fair use analysis for trademark. Here at Is it Fair Use?, we don’t discriminate against trademark-flavored fair use! Let’s play!

Elf Off’s Use of Elf On’s Marks

You can read about the two books’ content here. In addition, the court compared the two books’ covers and other trademark indicia as follows:
Defendant’s book cover includes the book title in a font that is quite similar to Plaintiff’s stylized logo font, an image of an elf in a green costume dangling from a shelf, the subtitle “A Christmas Tradition Gone Bad,” a byline attributing the story to Horace the Elf, and a final sentence, in red font: “A new holiday parody – for Mom and Dad!” (Emphasis in original.) The book is also 10” by 10” by .25” – much thinner than Plaintiff’s box set. Elf Off is not sold with a doll or special packaging. The back cover shows a photograph of the elf doll holding the Elf On book while…

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